The United States v. David H. Thomas.

vided that thereupon all commercial intercourse by and between the same and the citizens thereof, and the citizens of the rest of the United States, should cease and be unlawful, so long as such condition of hostility should continue; and that all goods and chattels, wares and merchandise, coming from said State or section into the other parts of the United States, and all proceeding to such State or section by land or water, should, together with the vessel or vehicle conveying the same or conveying persons to or from such State or section, be forfeited to the United States. The 4th section of the same Act (page 256) authorized the President to close ports of entry in certain cases, and give notice thereof by proclamation; and declared that thereupon all right of importation and other privileges incident to ports of entry should cease and be discontinued at such ports so closed, until opened by the order of the President; and that if, while said ports were so closed, any ship or vessel from beyond the United States, or having on board any articles subject to duties, should enter or attempt to enter any such port, the same, together with its tackle, apparel, furniture and cargo, should be forfeited to the United States.

By some of the revenue acts it is made unlawful to import certain articles except in the form or condition particularly described. Thus, by the first section of the Act of July 28, 1866 (14 U. S. Statutes at Large, 328), it is provided that no cigars shall be imported unless the same are packed in boxes of not more than five hundred cigars in each box; and that brandy and other spirituous liquors may be imported in casks or other packages of any capacity not less than thirty gallons; and that wine in bottles may be imported in boxes containing not less than one dozen bottles of not more than one quart each; and that wine, brandy or other spirituous liquors imported into the United States and shipped after October 1, 1866, in any less quantity than therein provided for

The United States v. David H. Thomas.

shall be forfeited to the United States. [And see, for similar provisions in respect to the importation of beer, ale and porter, and refined lump and loaf sugar, section 103 of the Act of March 2, 1789.] It is to such and similar importations contrary to law, and to the importation of articles, the importation of which is entirely prohibited, that the 4th section of the Act of 1866 was intended to apply; and as applied to such cases, the rule of evidence, or presumption of guilt, declared in that section, may well be justified, while it would be very harsh and oppressive if the provisions of the section in which it is found were to be applied to every case in which goods were actually imported or brought into the United States before the duties were paid or accounted for,—that is, to ninety-nine cases of every hundred of honest importations.

Perhaps it might have been suggested, if the question had been at all argued on the part of the United States, that the indictment states that the nutmegs therein mentioned were imported contrary to law, and that so much of the indictment as states in what the illegality of the importation consisted, may be rejected as surplusage. But the short answer to that is, that this is a part of the description of the offence, and cannot be rejected as surplusage, even if the indictment would have been good if the particular illegality of the importation had not been set forth; for if an indictment set out the offence with greater particularity than is required, the proof must correspond with the averments, and nothing descriptive of the offence can be rejected as surplusage. (U. S. v. Brown, 3 McLean, 233; U. S. v. Howard, 3 Sumn. 15; U. S. v. Foye, 1 Curtis C. C. R. 364.) But it is believed that the indictment would have been bad if the allegation of the illegality of the importation had been simply that it was contrary to law, without showing the facts constituting such illegality, or stating the particular illegality intended to be proved.

The United States v. Jay Cooke et al.

Upon the whole case, it is very clear that the count on which the defendant was convicted is not sufficient to sustain a conviction, and the motion in arrest of judgment is therefore granted.

Southern District of New York.

DECEMBER, 1870.

THE UNITED STATES vs. JAY COOKE et al.

COUNTERFEIT TREASURY NOTES.-ASSISTANT TREASURER.- CIRCUMSTANTIAL EVIDENCE.-HONEST BELIEF.

The defendants, having presented at the sub-treasury of the United States certain seven-thirty notes of the United States, to be retired under the provisions of the Act of April 12th, 1866 (14 U. S. Stat. at Large, 31), and having received the money therefor, it was afterwards claimed by the Government that eighteen of them were counterfeits, and an action of assumpsit was brought by the United States against the defendants, to recover the moneys paid for such alleged counterfeits.

Held, That, in order to entitle the United States to recover, it was necessary for them to prove that the eighteen notes were delivered to the United States by the defendants, that the United States paid their money for them, and that they were not issued by the United States under any Act of Congress.

That, under the Act of April 12th, 1866, the Secretary of the Treasury had no authority to retire or redeem any notes that were not in fact issued by the United States.

That, under the provisions of the Act of June 30th, 1864 (13 U. S. Stat. at Large, 218), the imprint, on the notes, of the signatures of the Treasurer of the United States and the Register of the Treasury, and the statement showing the amount of interest accrued or accruing and the character of the notes, spoken of in the Act, are to be taken as evidence of the lawful issue of such notes. That a delivery of notes to the Assistant Treasurer of the United States takes place when the notes are delivered to the proper officer, acting under the authority of the Assistant Treasurer.

The United States v. Jay Cooke et al.

That, as to the application of circumstantial evidence, if the jury should find any one circumstance clearly proved, which was inconsistent with a certain theory, that would be sufficient to destroy the theory entirely.

That the receipt of the notes as genuine, by the Assistant Treasurer, would not bind the United States in any manner, if the notes were not in fact genuine. That the honest belief of the defendants in the genuineness of the notes would not constitute a defence.

Judge BLATCHFORD charged the jury as follows:

Gentlemen of the Jury,-This case, to which you have given such patient attention for thirteen days, filled, as some parts of it have been, with details not in themselves very interesting, and perhaps rather tedious, is one of the most important cases in which it can be the privilege of any citizen to take part, either as judge, prosecuting officer, counsel for the defence, or juror, because it concerns deeply the interests of every man in the community. Every one of us, as a citizen of the United States, has an interest in seeing to it, that this immense mass of debt, which has been created by the Government for the protection of our rights, our liberties, and our perpetuity as a nation, shall not be counterfeited, falsely issued, and palmed off upon the community, and even upon the subordinate officers of the Government, in redeeming its indebtedness, imposing, in such case, on the Government the necessity of resorting to actions, like the present one, for the purpose of recovering what may be its just due. The loss resulting from counterfeit paper of this kind must fall on some one in the community, and almost certainly on some party who is really entirely innocent of any complicity with the spurious issue. So, on the other hand, every citizen dealing, or liable to deal, in spurious articles of this description, is interested that no piece of paper shall be pronounced spurious which is, in reality, genuine. Therefore it is, that this case has been tried with so much care upon the part of the Government, with so much

The United States v. Jay Cooke et al.

patience on the part of the Court and jury, and with such assiduous fidelity on the part of the counsel for the defence.

In the remarks which I shall have to make to you, I shall not detain you long. The claim which is made by the Government I shall submit to you upon those counts of the declaration, in respect to each one of the eighteen pieces of paper, which are, in substance, to this effectthat, on a certain day named, one thousand dollars, and some additional amount, by way of interest, was obtained by the defendants, Jay Cooke & Co., from the United States, on the occasion of the defendants having delivered to the United States what purported to be a certain obligation of the United States, known as a seven-thirty note, and a coupon attached, for the principal sum of one thousand dollars, and certain interest, to wit, a note bearing seven and thirty one-hundreths per cent. interest per annum, and numbered so and so, of the series of seven-thirty notes issued June 15th, 1865, by the United States, together with an interest coupon, attached to said note, calling for interest to June 15th, 1868, which note, with such coupon attached, was, by the defendants, at the time they delivered it to the officer of the sub-treasury of the United States, professed to be, and by the plaintiffs was, when received by them, supposed to be, a genuine note of the United States, with a genuine coupon attached; and that, by the representations and inducement of the defendants, then and there practiced, the same was received by the United States, and their said officer, as a valid and genuine note, with the coupon attached, at the sub-treasury of the United States; whereas, the note and coupon were, in fact, counterfeit, and neither of them had ever been executed or issued by the United States, their officers or agents, but had been forged and falsely made and uttered, and were no obligation whatever of or upon the United States, and were by them, to wit, by their said